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Computers, Privacy & the Constitution
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Constitutional Obligations-- By MitchellKohles - 08 Mar 2021 [I haven't yet incorporated footnotes or hyperlinks into this draft (they're sitting in my Word document). I will do so as I revise the draft and develop my thesis.]IntroductionOurs is a constitution of rights. Increasingly, those rights appear in the negative—freedom from governmental action that infringes on one or another right, rather than an affirmative duty of government to ensure certain rights or freedoms by providing individuals with what's necessary to savor what's secured. Several scholars have proposed pushing the latter view through the courts, especially as to state provision of education. But could a theory of constitutional obligations—not of the government but of persons—hold more promise in achieving much-needed constitutional aims, including privacy (in all its component parts) in the networked world? What would result from a constitutional duty to, for example, safeguard one another’s anonymity amid the environmental forces of the Internet? Is there any basis for locating individual obligations in the U.S. Constitution? If so, how might those obligations drive new constitutional ends? This paper explores these questions.A Potentially Dangerous PathAt the outset, we should be cautious in seeking individual obligations in the Constitution, given the danger that such obligations can easily be refracted through the state’s centralized power and become a coercive force that prescribes individual thought or livelihood. The Soviet Union’s constitutional analog imposed such duties as to “safeguard and strengthen socialist property,” and to be “intolerant of anti-social behavior.” The comparable document of the People’s Republic of China, in its second Chapter, “The Fundamental Rights and Duties of Citizens,” reaches further in imposing a “duty to practise family planning” (Art. 49), a “duty to work” (Art. 42), and a duty “to safeguard the security, honour and interests of the motherland” (Art. 54). The Chinese Communist Party, of course, reserves the right to define those “interests” and identify threats to that “security.” But our existing (and much older) constitutional guarantees of freedom from governmental coercion provide a strong bulwark against these dangers, should individual obligations arise in some form.Signs of (Non-Public) ObligationsContra certain textualists and those hewing to a “negative rights” view of the Constitution, individual obligations are not alien to our founding document. This is true even after putting to the side obligations of public officials, for example, to “take care” that laws be “faithfully executed.” Jury duty (under the 5th, 6th, and 7th Amendments) is a strong candidate. A duty to vote, especially after the Reconstruction Amendments, may be even stronger, given the necessity for “the People of the several States” to gather and select their government. But historically, State constitutions have done the work of imposing explicit individual obligations to one’s community. In my home State, militia enrollment is a constitutional requirement for “[a]ll able-bodied male persons, residents of this state, between the ages of eighteen and forty-five years,” with a peacetime exception for those with “conscientious scruples against bearing arms.” Idaho Constitution, Art. XIV, § 1. Education appears here, too—Idaho includes a constitutional right to education from the State (like most other States ) but also the possibility of a corresponding obligation: “The legislature may require by law that every child shall attend the public schools of the state, throughout the period between the ages of six and eighteen years, unless educated by other means, as provided by law.” Idaho Constitution, Art. IX, § 9. Of course, reflection on these and similar provisions reveals that—like China’s constitutionally granted rights—they are symbolic. They enable not judges to find individuals in constitutional violation, but legislators to pursue certain policies that may nevertheless burden rights otherwise guaranteed, for example, a draftee’s right to protest the war.The Appeal of ObligationsAs Professors Calabresi and Lawson argue, the Constitution certainly presupposed that private institutions—familial, religious, civic—would foster each individual’s sense of responsibility and impose corresponding obligations. However, full incorporation of the Bill of Rights has limited the permissible role of private institutions, especially religious ones, to act in concert with the States in fostering those communal responsibilities. Meanwhile, the court has entered into tortured discussions about what might be the proper balance of “Our Federalism.” The result is a vacuum. The necessary response, I think, is not judicial discovery but a new symbolic articulation of our collective values.Corporate Obligations[TBD] [Corporate "persons" and their rights have blossomed in the past century. Perhaps they are most suited to shoulder corresponding obligations. Note how state constitutions are themselves based on company charters]Objections[TBD] [America’s early myths of the Frontiersman’s “rugged individualism” and the modern “right to be left alone” combine to make an obligation emanating from the government nearly unpalatable. And would a vision of constitutional obligations be any different from those seeking to establish affirmative governmental duties? Ultimately, I think not.]You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. 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